Nathaniel Hillyer. Egleston.

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of the house of Wentworth. By his side, through good and
evil fortune, stood more than one of the peers, heads of the
great Whig families, as well as Burke and Charles James Fox.
Chatham, though he thundered in the House of Commons
against the arbitrary measures of the Government as long as he
remained there, and continued to thunder against them in the
Lords, was a new man among the peers. The strength of the
opposition was in the aristocracy of older creations, followed by
a few eminent men in the lower house. But these reminiscences,
interesting as they might be, and such a computation of the
historical merits of the Lords and the Commons, curious as it
might be, would not be of much consequence now. Neither
would the illustrious descent of many of the present House of
Lords, or the personal merits of the ancestors of those who are
of comparatively recent creation, or the public services of those
who have been created in our day, count for much when the
practical question arises, "What is to be done with that house ? It
may be a longer or a shorter time before the peers will lose their
hold upon the respect and confidence of the nation. The snob
bish love of an Englishman for a lord is a good subject for
laughter all over the world ; and undoubtedly there is, among
all classes of our transatlantic cousins, a deference paid to rank
as rank, that seems to most Americans supremely^absurd in a
people who are so robust and manly, while at the same time it is
not without imitation among some of our own countrymen. But,
setting aside what is on the surface merely of the national man
ners of a people, there never has been a nobility in any country
having, as a body, stronger grounds on which to rest its claims
to national consideration, or with better grounds on which to
rest its peculiar privileges, than the British aristocracy. We
first know of it as an institution in ages when it was a rude
dominant class, turbulent and tyrannical, sometimes loyal, and
sometimes disloyal, but always valiant with the virtues and the
vices that the feudal system engendered. In the long course
of its history, it has had members who have adorned and mem
bers who have disgraced their order. This is its condition now.
But from the earliest period of its history to the present day,
there has been in the ranks of the peerage a progressive im
provement in virtue, in public spirit, in conscientious discharge
VOL. cxxxix. NO. 337. 40


of all the duties of life, in cultivation and in true nobility of
character, quite as marked as that which has taken place among
any of the classes that are not connected with it at all. There
is, therefore, aside from the mere prestige of rank, and aside
from the peculiar position that the old polity of the state
assigns to this order of men, a real ground for the solid respect
in which the nation at large undoubtedly holds the peerage as a
body. It is a respect that can be forfeited ; but it will not be
likely to be seriously impaired by extravagant attacks upon the
unquestionable legislative authority of the House of Lords.
Still, however, the time may come when all these things will
count for very little, and when the question will arise, whether
the ancient polity of the realm is to be changed by abolishing or
essentially modifying the upper house of Parliament. That
question, let it arise when and how it will, is interesting and im
portant not alone to the subjects of Queen Victoria. It may well
attract not only our attention as heirs of much that is valuable
in the British polity, but the attention likewise of all the nations
that have the happiness of possessing any tolerable share of
self-government, and to whom the science of government is a
matter of living concern.

The nations of Germanic origin owe chiefly to England the
modern invention of a dual legislature in its most efficient form.
It was an invention, and a great one, however long it was in
forming. The Latin races have not copied it. The Roman
Senate, which was an assembly of nobles, never, either under
the Republic or under the Empire, had a coordinate and inde
pendent colleague in legislation, drawn by representation from
the body of the people ; and it was from the Roman Senate that
the Latin nations in the Middle Ages derived the idea of a body
of legislators, however that idea may have been modified among
them by some of the Gothic or the Frankish institutions. At
what precise period the old Witenagemote, or grand council of
the Anglo-Saxon kings, became separated into two distinct
houses, historians cannot tell us. But at some period the separa
tion became complete ; and when it had become so, the advantage
of a legislature composed of two coordinate branches of equal
authority was attained. One of these bodies became an assembly
in which men sat as representatives of shires or boroughs, by
virtue of an election made by electors whose prescriptive right
to be so represented was acknowledged by all the powers of the


state. The other became an assembly in which men sat by virtue
of a patent of nobility granted by the Crown, which vested the
right so to sit in their male descendants, according to seniority
of birth. This is equally a right acknowledged by everybody.

The hereditary principle, as a source of a right to discharge
some public function of government, may be, both theoretically
and practically, very poor, compared with some form of selection
of the individual in which the people can have a voice. But in
a country where the hereditary principle prevails in the desig
nation of the head of the state, its extension to some other part
of the government introduces nothing to which the nation is un
accustomed. In England the hereditary right of certain men
and their male descendants to be summoned to and to sit in
Parliament is as old as the right in one particular family to wear
the crown and to sit on the throne. Both of them are fixed in
stitutions, and just as much established in the fundamental law
of England as is the right of a freeholder to the house that shel
ters him and to the acres that he tills, or the right of any Eng
lishman to the money in his pocket.

On the merits of any particular measure on which the House
of Lords has ever differed, or shall differ, with the House of
Commons, it would not become a foreigner to express an opinion.
It may relate to an extension of the elective franchise, or to any
thing else. It is of no consequence to the world at large whether
the Lords are justly or unjustly treated when their opposition is
imputed to selfish motives or to narrow prejudices. How far
they shall carry their opposition, when and how they ought to
yield, are matters on which no foreigner's judgment is worth the
paper on which it may be printed. But when the question
arises, either out of vindictive feeling or in cool calculation of
what is expedient, whether the House of Lords as a branch of
the British legislature shall be destroyed, the whole civilized
world may be said to have an interest in what is to be done or
attempted. This interest springs from the fact that the principle
of two legislative chambers is involved in the system of English
parliamentary government, and from the further fact that Eng
land possesses no means of founding a safe and efficient second
legislative chamber if the House of Peers is to be done away with.

The British nation, if not now, may at some time be brought
face to face with the question whether they will try to get along
with a single legislative body. " To this complexion must it


come at last/' if they do away with the House of Lords, unless
they can find a different and a better basis on which to found a
substitute that will continue to give them the advantages of a
dual legislature. For this reason, what we in America have done,
how we came to do it, and how we did it, are inquiries worthy of
their attention. These inquiries are important to Englishmen,
not because our republican model is capable of imitation in a
country of monarchical and aristocratic institutions, or because
a republic in England is, however improbable, a remote possi
bility. What has been done in America, and the ultimate reasons
for it, are inquiries valuable to Englishmen, because they may
help them to see how impracticable it is for them to follow our
example. There is but one aspect in which our example is an
important illustration of a general principle ; this is the recog
nition, by the Constitution of the United States and by all our
State constitutions, of the supreme expediency of a dual legisla
ture. In framing our national Constitution, which has now al
most completed its first century, we were perfectly free to adopt
the plan of a single legislative chamber, or to follow the English
model, which, with one or two exceptions only, had been adopted
in all our thirteen States before the Constitution of the United
States was made. In fact, most of our colonial and provincial
governments, before the Revolution, had been framed upon the
plan of two chambers. But it was not solely or chiefly because of
the ancient habit, that the framers of our national Constitution
repeated this plan. They thoroughly considered the question as
an original one, as one of great consequence in the science of
government, both theoretically and practically. There was but
one important man among them that preferred a single chamber.
Franklin, in holding this opinion, was influenced in some degree
by the fact that Pennsylvania, of which he had long been a citi
zen, and of which he was then President, had until then a single
legislative body. He also favored a plural executive, and was
opposed to a salary for the chief executive office. But these
opinions were shared by none of his colleagues in the convention.
The plan of a dual legislature for the United States was adopted
by a most decided predominance of the conviction that two
chambers, acting as equal checks upon each other, are essential
to wise and safe legislation.

But when we come to consider the respective bases of our two
houses of Congress, and especially when we observe the nature


and form of the representation in the Senate, we shall see, on the
one hand, how fortunate it was for us that the circumstances
of our situation afforded the means of constructing a Senate on
a principle of representation very different from that which was
to be given to the other house of Congress, and on the other
hand how impracticable it would be in England to attempt to
find a basis for a senate, if the House of Lords is to be abolished
or materially modified. In the United States no aristocratic in
stitutions existed, no recognized social ranks, no masses of
landed or other property, that could be made the basis of pecul
iar representation in a Senate. The equality of all white men
before the law was the condition of society everywhere. The
peculiar arrangement Dy which the slaves in certain States were
allowed to be counted in a certain ratio, in computing the popu
lation of the States to be represented in the lower house, was not
adopted for the Senate because the representation in that was
not to be based on population. As it could not be based on
property, a peculiar and, for America, an unexampled method of
representation was devised. It grew out of the necessity for in
troducing into some part of the Government a recognition of the
federative character of the proposed political system. The separate
sovereignties of the States, which were to remain unimpaired save
in so far as their people were to cede to the central Government
certain powers of a specific character and of national concern,
afforded the means of establishing an equal representation of the
States in the Senate, without regard to their extent of territory,
the amount of their population, or their comparative wealth.
A second legislative chamber was thus secured, the seats in
which are held, not by popular election as in the House of
Representatives, but by appointments made by the State legis

Had this necessity for recognizing the federal principle in
some part of our Government not existed, the Senate of the
United States, if it had been formed at all, must have been
founded on some other basis. But there was no practical
basis but this; and no American of any intelligence will be
disposed to doubt that the circumstances that enabled the wise
founders of our Government to establish such a mode of rep
resentation in the chamber that nearly all of them believed
to be of the utmost importance, were a most fortunate and
peculiar concatenation. No American would listen for one


moment to a proposition to do away with, our Senate because, on
any occasion or any subject whatever, it has chosen to exercise
its undoubted prerogative of independent action upon any measure
sent to it by the other house of Congress. Disagreements between
the two houses are of constant occurrence. If committees of
conference cannot reconcile the conflict, the measure falls quietly
to the ground. No one complains that the Senate sets itself in
opposition to the popular will. Everybody knows that the Senate
exists for the purpose of encountering the popular will when it
deems it necessary to do so.

But no suitable materials exist in England for the construc
tion of a new chamber to take the place of the House of Lords.
Let us suppose the whole people of England or for that matter
the whole people of England, Scotland, and Ireland to be
represented in a national convention composed of the wisest and
ablest representative men of all ranks and conditions. There
is to be no violence, no public commotion, nothing but a calm
and deliberate consideration of what can be done to modify the
old civil polity of the realm. The question that is to be con
sidered is twofold : first, whether there shall be but one house
of Parliament ; and secondly, if there are to be two, what sub
stitute for the House of Lords can be found ? On the first ques
tion the deliberation will not be long, if the nation or its
representative men shall pay due heed to their own history and
experience j for these will teach them that a House of Commons,
under the guidance and influence of any minister whatever,
sometimes needs to be checked by a body of equal authority. If
the day shall ever come when the people of the British isles
shall seriously consider whether they will do away with the
monarchy and establish a republic, the question of a double
legislature will still confront them j for, whether the government
is to be monarchical or republican, the advantages of two legisla
tive chambers, and the disadvantages of one, will remain the
same. It may safely be assumed, therefore, that the British
people will never imitate the example of those countries that
have had, or those that now have, but a single legislative body.
It is of the very genius of parliamentary government as it has
been practiced in England for many centuries, that before any
measure can become the law of the land it must be submitted to
the independent judgment of two bodies differently constituted ;
and considering that a law enacted by Parliament is both law


and constitution (for such is the " omnipotence n of Parliament
that its acts never have to be or can be subjected to any test of
their constitutional validity), it is of the utmost consequence to
the liberties of the people that the legislation which they must
obey shall be passed upon by more than one body of legislators.
Whether an aristocratic assembly is a better guardian of the
liberties of the people than a popular one, is, as an abstract ques
tion, of no great moment. Practically, the peers of Great Brit
ain have not, in general, been less careful of the liberties of the
people than the Commons.

Of what, then, shall the substitute for the House of Lords be
composed? Confining the view at present to the three king
doms over which Queen Victoria reigns, two plans may be sug
gested as alternatives : first, to make a smaller body than the
present House, by some mode of electing representative peers
from the whole number of those now having the right to sit in
Parliament; secondly, to adopt the counties, or some other
territorial divisions, as the basis of a new chamber, and let the
seats be filled by popular election, distributing the seats by
some fixed rule. The first of these plans would gain nothing
but a reduction of the number of members of the new senate j
for, however the choice might be regulated, the persons chosen
would still be members of an aristocratic order, and all the
tendencies that are now imputed to such an order of men would
remain in full force. It might, too, be a very serious question
whether, if the aristocratic character of such an assembly is to
be preserved, there would be any real advantage in reducing its
numbers. The arrangements that were made at the union
between England and Scotland, limiting the number of Scottish
peers to be admitted to seats in the Parliament of Great Britain,
and the corresponding limitation of Irish peers established when
the Parliament of Ireland was discontinued and that kingdom
was admitted to representation in the Parliament at Westmin
ster, were made in order to adjust the representation so as to
satisfy the English peers and people, and to prevent the relative
weight of England from being unduly reduced. But in any new
plan for constituting a chamber to be composed of English,
Scottish, and Irish peers, however the relative claims of the
three kingdoms might be adjusted, and whatever might be the
whole number of representative peers, the assembly would still
be aristocratic, founded on the principle that there is an order


of men in the State to whom it is expedient to assign a distinct
power in the Government by reason of their birth and social
position. The second of the plans above suggested brings into
view the total absence of all analogy between the English or the
Scottish or the Irish counties and the States of the American
Union, as a basis on which to found a second legislative cham
ber. In Great Britain or Ireland, a county is a territorial
division in which, whatever rights of local self-government the
inhabitants exercise, they hold and exercise at the will and
pleasure of Parliament. As a territorial division of the king
dom, they hold no reserved rights under their own absolute
control, and therefore it would be impossible to construct a
legislative body for the whole kingdom, or for the three king
doms, in which the principle of a federal union could be intro
duced. It would be a very easy matter to take the English
counties, or any other territorial division arbitrarily selected,
and provide for a representation of the inhabitants in a second
chamber, throwing the seats open to be contended for by peers
or by any other class of men. The same arrangement could be
extended to Scotland and to Ireland. But such a chamber
would bear no resemblance to the American Senate, and could
not have its advantages. It would be like the senates of our
State legislatures, nothing but a double representation of the
people of a certain territorial division, chosen by the same
electors who choose the members of what is called the popular
branch. Even if the suffrage for this kind of senate is restricted,
it is still a representation merely of a certain number of people,
unless property is in some way introduced into the basis. In
the Senate of the United States, the representation is not a
representation of numbers of inhabitants, or of property or
comparative wealth. It is an equal representation of sovereign
political communities, which hold an independent right of self-
government in all matters not comprehended in the grants of
power that their people have made to the Government of the
United States. No imitation of this system is possible in the
British Islands.

But the sovereign of Great Britain and Ireland rules over a
vast empire extending into various quarters of the globe, and
for some purposes the Parliament at Westminster governs great
dominions beyond the seas that surround the isle on which it
sits. Extending our hypothesis, therefore, for a moment, to a


broader view, let us consider another theory. The people of the
three kingdoms, of all classes, might be very willing, for imperial
purposes, to make a new second chamber in Parliament, into
which should be admitted representatives of any or all of the
colonies or dependencies. But what would the people of Eng
land, Scotland, or Ireland say to permitting a representative,
peer or commoner, from Canada or India or Australia or the
Cape Colony, to legislate on matters domestic to England or
Scotland or Ireland ? Of course it would be out of the question.
They might be willing to allow any British subject, wherever
born, to represent an English, Scottish, or Irish constituency
whose votes he could gain for a seat in the House of Commons,
or in any new legislative chamber that they might devise ; but
his vote would be the vote of his constituents, and if he did
not represent an English, Scottish, or Irish constituency, but
only a distant portion of the empire, his vote could be permitted
only in matters affecting his real constituency.

It is only necessary to touch upon this difficulty, in order to
see how vast and complicated is the problem that will be before
the British people whenever they approach the question of find
ing a substitute for the House of Lords. As things are now and
have long been constituted, the members of that House hold
their seats upon the theory that the good of the state is best
subserved by admitting to a distinct power in the Government
a certain order of men. It is not a theory that any people
would deliberately adopt in the present age of the world, if they
were at the same time to create de novo the aristocracy that was
to be admitted to hold and exercise the power. But the British
aristocracy was not made in this age of the world ; it is an insti
tution as old as anything in the condition of the English people
of which we have any certain knowledge ; and whether the time
has now come, or is near at hand, or is in the far distant future,
when the theory of its position in the state must undergo
revision and perhaps rejection, the statesmen and people of
Great Britain will have to remember that, in finding a substitute
for the House of Lords, they must do one of two things. They
must have a parliament or supreme legislature in which, as now,
the members of both houses will have the right to vote on
domestic and imperial matters alike, or they must contrive some
mode of introducing a distinction. At present, the law of England
knows no such distinction. A peer of the realm sitting in the


upper house, and a commoner sitting in the lower, legislate for
the people of Great Britain and Ireland, and for millions in
other lands, without the smallest difference of power ; and it is
very difficult to see how it can be otherwise. The time may
indeed come when all the dependencies of the British Crown in
other quarters of the world will one by one be finally severed
from it ; but at present the commercial greatness of England is
bound up in the maintenance of its imperial interests and
authority, and, so far as human speculation can penetrate the
future, the time is very remote when the legislation of England
will be confined within the limits of the three kingdoms. When
that colossal power has shrunk to those dimensions, there will
be less embarrassment in the work of constructing a frame of
government that is to take the place of the one that exists to
day. Whenever that time comes, unless the nature of man has
undergone a great change, it will still be found that a dual
legislature is the best of all the forms of parliamentary govern
ment, although it may be possible to do away with the aristo
cratic and hereditary element.

In the discussions in England during the past summer, a
radical orator threw out a suggestion that, if the House of Lords
is not to be altogether put out of the way, which he would
greatly prefer, its power in legislation might be curbed. He did
not explain how, but apparently his meaning was, that the Lords
might be allowed to take one vote upon a measure sent up to
them from the Commons, and then if they rejected it the Com

Online LibraryNathaniel Hillyer. EglestonThe North American review (Volume 139) → online text (page 54 of 60)